In Deciding Custody, Court Considers the Best Interests of the Child

A New York Lawyer said in related proceedings pursuant to Family Court Act, the mother appeals from an order of the Family Court without a hearing, dismissed her petition to modify an order of visitation and an order of the same court, which, without a hearing, dismissed her petition to hold the father in contempt for his willful violation of an order of the same court.

A New York Custody Lawyer said the order dismissing the petition to modify the order of visitation is reversed, on the law, without costs or disbursements, that petition is reinstated, and the matter is remitted to the Family Court for a hearing to determine whether a modification of the visitation schedule is in the best interests of the child. The order dismissing the petition to hold the father in contempt is affirmed, without costs or disbursements.

The Family Court improperly dismissed the mother’s petition to modify the order of visitation. Modification of an existing custody or visitation arrangement is permissible only upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child. Here, the mother met that burden, as the modification of visitation petition alleged that in the past year the father had missed 40-50% of his visits with the subject child. Therefore, the court reversed the order dismissing the petition to modify the order of visitation, reinstate that petition, and remit the matter to the Family Court for a hearing to determine whether a modification of the visitation schedule is in the best interests of the child.

The Family Court properly dismissed the mother’s petition to hold the father in contempt. The burden is on the moving party to demonstrate, by clear and convincing evidence, that the accused party violated a clear and unequivocal court order which the accused party knew was in effect, thereby prejudicing a right of another party to the litigation. Further, a hearing is not mandated in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone. Here, no hearing was required because, at the time the petition was filed, there could be no violation of the visitation order since the father still had time to comply with the order. Further, contrary to the mother’s contention, the summer visitation clause does not provide that the mother must have visitation with the child on the weekend following the father’s two consecutive weeks of visitation with the child. The mother’s remaining contentions are without merit.

A Queens Family Lawyer said in another custody and visitation proceeding pursuant to Family Court Act, the attorney for the child appeals from an order of the Family Court which granted, without a hearing, that branch of the mother’s petition which sought unsupervised visitation with the subject child in the mother’s home.

A Queens Custody Lawyer said the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, that branch of the mother’s petition which sought unsupervised visitation with the subject child in the mother’s home is denied, and the matter is remitted to the Family Court, for further proceedings consistent herewith, and a new determination of that branch of the petition thereafter.

In adjudicating custody and visitation rights, the most important factor to be considered is the best interests of the child. Supervised visitation is appropriately required only where it is established that unsupervised visitation would be detrimental to the child. Generally, visitation should be determined after a full evidentiary hearing to determine the best interests of the child.

Under the circumstances of the case, the Family Court improvidently exercised its discretion in granting that branch of the mother’s petition which sought unsupervised visitation with the subject child in the mother’s home without conducting a full evidentiary hearing. Accordingly, the matter must be remitted to the Family Court for a full evidentiary hearing as to whether the mother’s visitation with the subject child in the mother’s home is in the child’s best interests, including the completion of a full forensic evaluation of the mother and a home study, and thereafter, for a new determination of that branch of the mother’s petition which sought unsupervised visitation with the subject child in the mother’s home.

Children need their family to support them and help them get through life. If you are deprived of your right as a mother and you want to win your custody and visitation appeal, consult the Kings County Family Lawyer or the Kings County Visitation Attorney from Stephen Bilkis and Associates.